Non-fatal Offences Against the Person

Question 1

Assault

Answer 1

An assault is any act which intentionally or recklessly causes another to apprehend immediate unlawful violence (Fagan v Metropolitan Police Commissioner [1969] 1 QB 439). The mental elements involved, i.e. the intention or recklessness on the part of the defendant and the ‘apprehension’ on the part of the victim, means that no physical contact between the offender and victim is required. If X shouts at Y ‘I’m going to kick your head in!’, intending Y to believe the threat and Y does believe it, an assault has been committed by X against Y. Assault can only be committed by carrying out an act; it cannot be committed by an omission.

Question 2

Mental Elements of Assault

Answer 2

On the part of the defendant, the mens rea needed to prove assault is either:

• the intention to cause apprehension of immediate unlawful violence; or
• subjective recklessness as to that consequence.

The victim must ‘apprehend’ (believe) that he/she is going to be subjected to immediate unlawful violence, so the state of mind of the victim in an assault is relevant. If X threatened to shoot Y with an imitation pistol, then X could be charged with assault provided Y believed that the pistol was real and that he/she was going to be shot (apprehending unlawful violence). The fact that the pistol was an imitation and could never actually physically harm Y is not important as X has caused Y to apprehend immediate violence being used (Logdon v DPP [1976] Crim LR 121). If Y knew that the pistol was an imitation and that it could not be fired to hurt him, then Y would not believe the threat and would not ‘apprehend’ immediate unlawful violence and there would be no assault committed by X. Likewise, if X threw a stone at Y, who has his back to X when the stone is thrown, and the stone sails past Y’s head without Y noticing it, there would be no assault as Y did not ‘apprehend’ unlawful violence.

‘Apprehension’ does not mean ‘fear’ so there is no need to show that the victim was actually in fear. So if V is threatened with violence by D and V does apprehend the threat of immediate violence, it does not matter whether he/she is frightened by it. He/she may relish the opportunity to teach D a lesson, and yet still be regarded as the victim of D’s assault. The violence apprehended by the victim does not have to be a ‘certainty’. Causing a fear of some possible violence can be enough (R v Ireland [1998] AC 147) provided that the violence feared is about to happen in the immediate future (R v Constanza [1997] 2 Cr App R 492).

Question 3

What is ‘Immediate’?

Answer 3

Although the force threatened must be immediate, that immediacy is somewhat elastic. Courts have accepted that where a person makes a threat from outside a victim’s house to he victim inside, an assault is committed even though there will be some time lapse before the defendant can carry out the threat.

In Ireland, the House of Lords suggested that a threat to cause violence ‘in a minute or two’ might be enough to qualify as an assault; a threat to provoke some apprehension of violence in the more distant future would not suffice.

The victim must be shown to have feared the use of force; it will not be enough to show that a person threatened by words (or silence) feared more words or silence.

Question 4

Words

Answer 4

Words (and silence) can amount to an assault provided they are accompanied by the required mens rea. In Ireland, it was held that telephone calls to a victim, followed by silences (which led the victims to fear that unlawful force would be used against them), could fulfil the requirements for the actus reus of assault if it brought about the desired consequences (e.g. fear of the immediate use of unlawful force). It was accepted that ‘a thing said is also a thing done’ and the view that words can never amount to an assault was rejected.

Where the words threatening immediate unlawful force come in the form of letters, it has been held that an assault may have been committed (Constanza at para. 2.7.2.1). It is natural to assume that any form of communication can be used as a method for an assault. Thus, it would be possible to assault someone via an email or a text message.

Question 5

Conditional Threats

Answer 5

Words can negate an assault if they make a conditional threat, e.g. where you attend an incident and one person says to another ‘If these officers weren’t here, I’d chin you!’. In this situation the defendant is making a hypothetical threat and is really saying ‘if it weren’t for the existence of certain circumstances, I would assault you’ (Tuberville v Savage (1669) 1 Mod Rep 3). This should be contrasted with occasions where the defendant makes an immediate threat conditional upon some real circumstance, e.g. ‘If you don’t cross the road, I’ll break your neck’. Such threats have been held, in a civil case, to amount to an assault (Read v Coker (1853) 138 ER 1437).

Question 6

Battery

Answer 6

A battery is committed when a person intentionally or recklessly (subjectively) inflicts unlawful force on another (Fagan v Metropolitan Police Commissioner [1969] 1 QB 439). Battery requires physical contact with the victim, so the offence could not be carried out via the phone (causing psychiatric injury (R v Ireland [1998] AC 147)). It is sufficient to constitute battery that the defendant attacks the clothing which another is wearing (R v Day (1845) 1 Cox CC 207).

Battery need not be preceded by an assault. A blow may, for example, be struck from behind, without warning.

A very small degree of physical contact will be enough, not, as many think, an act involving serious violence.

That force can be applied directly or indirectly. For example, where a defendant punched a woman causing her to drop and injure a child she was holding, he was convicted of the offence against that child (Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890). In DPP v Santa-Bermudez [2003] EWHC 2908 (Admin), the defendant was held to have committed a battery against a police officer when he falsely assured her that he had no ‘sharps’ in his possession, and thus caused her to stab herself on a hypodermic needle as she searched him.

Question 7

Assault or Battery?

Answer 7

Although the terms ‘assault’ and ‘battery’ have distinct legal meanings, they are often referred to as simply ‘assaults’ or ‘common assault’. It is, however, important to separate the two expressions when charging or laying an information against a defendant, as to include both may be bad for duplicity (DPP v Taylor [1992] QB 645). In Taylor, the Divisional Court held that all common assaults and batteries are now offences contrary to s. 39 of the Criminal Justice Act 1988 (see para. 2.7.11), and that the information must include a reference to that section.

Question 8

Consent

Answer 8

A key element in proving an assault is the unlawfulness of the force used or threatened. Although the courts have accepted consent as a feature which negates any offence, they have been reluctant to accept this feature in a number of cases. The two principal questions that may arise in this context are:

• did the alleged victim in fact consent (expressly or by implication) to what was done; and
• if so, do public policy considerations invalidate that consent?

Question 9

Legitimate Consent to Risk of Injury

Answer 9

One of the more straightforward policy considerations would include the implied consent to contact with others during the course of everyday activities. We are all ‘deemed’ to consent to various harmless and unavoidable contact, such as brushing against another on a crowded train. In such a case, it will be a matter of fact to decide whether the behaviour complained of went beyond what was acceptable in those particular circumstances.

There are times when a person may consent to even serious harm, such as during properly conducted sporting events (Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715), tattooing and medical operations. Participants in contact sports such as football are deemed to consent to the risk of clumsy or mistimed tackles or challenges; but this does not include tackles that are deliberately late or intended to cause harm (e.g. in an off-the-ball incident (R v Lloyd (1989) 11 Cr App R (S) 36)). Injuries caused in an unauthorised prize fight could not be consented to as this would not be a properly conducted sporting event. In R v Barnes [2004] EWCA Crim 3246, the defendant appealed against his conviction for inflicting grievous bodily harm after he caused a serious leg injury by way of a tackle during a football match. The tackle took place after the victim had kicked the ball into the goal but, while accepting that the tackle was hard, the defendant maintained that it had been a fair challenge and that the injury caused was accidental. The Court of Appeal held that where injuries were sustained in the course of contact sports, public policy limited the availability of the defence of consent to situations where there had been implicit consent to what had occurred. Whether conduct reached the required threshold to be treated as ‘criminal’ would depend on all the circumstances. The fact that the actions of the defendant had been within the rules and practice of the game would be a firm indication that what had occurred was not criminal, although in highly competitive sports even conduct outside the rules could be expected to occur in the heat of the moment, and such conduct still might not reach the threshold level required for it to be criminal. The court held that the threshold level was an objective one to be determined by the type of sport, the level at which it was played, the nature of the ‘act’, the degree of force used, the extent of the risk of injury and the state of mind of the defendant.

Teachers who are employed at schools for children with special needs, including behavioural problems, do not impliedly consent to the use of violence against them by pupils (H v CPS [2010] EWHC 1374 (Admin)).

What of the situation where the consent of the victim has been obtained by fraud? In R v Richardson [1999] QB 444, a dentist (Diane Richardson) who had been suspended by the General Dental Council continued practising dentistry. The circumstances came to light and charges of assault were brought. Although initially convicted, the Court of Appeal quashed the conviction on the basis that fraud will only negate consent if it relates to the identity of the person or to the nature and quality of the act. Richardson did not lie about her identity p. 429↵(she did not lie about her name) or about the nature and quality of the act (the dentistry carried out). While her behaviour was reprehensible, it did not amount to an offence. This does not mean that persons without appropriate qualifications sneaking into a surgery and putting on a white coat and calling themselves ‘Doctor’ followed by their true name could avoid liability if they then made physical contact with another in the guise of providing treatment. While there is no fraud as to identity, any treatment carried out would be caught by a fraud in respect of the quality of the act. Consent would also be negated if a genuine doctor indecently touched his patients on the basis that this was part of a routine medical examination when its true purpose was for sexual gratification (R v Tabassum [2000] 2 Cr App R 328).

Question 10

Consent to Sado-masochistic Injuries

Answer 10

Where actual bodily harm (or worse) is deliberately inflicted, consent to it will ordinarily be deemed invalid on the grounds of public policy even if ‘victims’ know exactly what they are consenting to.

An example of this approach can be seen in the case of R v Brown [1994] 1 AC 212. That case involved members of a sado-masochist group who inflicted varying degrees of injuries on one another (under ss. 20 and 47 of the Offences Against the Person Act 1861) for their own gratification. The group claimed that they had consented to the injuries and therefore no assault or battery had taken place. Their lordships followed an earlier policy that all assaults which result in more than transient harm will be unlawful unless there is good reason for allowing the plea of ‘consent’. Good reason will be determined in the light of a number of considerations:

• the practical consequences of the behaviour;
• the dangerousness of the behaviour;
• the vulnerability of the ‘consenting’ person.

Sado-masochistic injury may justifiably be made the subject of criminal law on grounds of the ‘protection of health’. It was for this reason that the European Court of Human Rights held that there had been no violation of the defendants’ right to respect for private and family life (under Article 8) in Brown.

Further issues in clarifying what will amount to ‘true’ or effective consent were added by the decision of the Court of Appeal in R v Wilson [1997] QB 47. In that case, the court accepted that a husband might lawfully brand his initials on his wife’s buttocks with a hot knife provided she consented (as she appeared to have done). The reasoning behind the judgment seems to be based on the fact that the branding was similar to a form of tattooing, but also on the policy grounds that consensual activity between husband and wife is not a matter for criminal investigation. Therefore, if a situation arose where a husband and wife took part in mutual branding in the privacy of their home, their criminal liability would arguably depend on whether they caused the harm for purposes of sado-masochistic pleasure or out of some affectionate wish to be permanently adorned with the mark of their loved one.

Question 11

Consent to Serious Harm for Sexual Gratification

Answer 11

Section 71(2) of the Domestic Abuse Act 2021 states that it is not a defence that the victim of a ‘relevant offence’ consented to the infliction of the serious harm for the purposes of obtaining sexual gratification.

KEYNOTE

‘Relevant Offence’

A ‘relevant offence’ means an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861. ‘Serious harm’ means:

• grievous bodily harm, within the meaning of s. 18 of the 1861 Act;
• wounding, within the meaning of that section, or
• actual bodily harm, within the meaning of s. 47 of the 1861 Act.
  Section 71(2) does not apply in the case of an offence under s. 20 or s. 47 of the 1861 Act where:
• the serious harm consists of, or is as a result of, the infection of the victim with a sexually transmitted infection in the course of sexual activity, and
• the victim consented to the activity in the knowledge or belief that the defendant had the sexually transmitted infection.
  It does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for the defendant, for the victim or for some other person (s. 71(5)).

Question 12

Corporal Punishment

Answer 12

Section 548 of the Education Act 1996 outlaws corporal punishment in all British schools, including independent schools. Staff may use reasonable force in restraining violent or disruptive pupils as ‘corporal punishment’ shall not be taken to be given to a child by virtue of anything done for reasons that include averting an immediate danger of personal injury to or an immediate danger to the property of any person (including the child him/herself (s. 548(5)).

Question 13

Reasonable Punishment

Answer 13

Section 58 of the Children Act 2004 prohibits the defence of reasonable punishment for parents or adults acting in loco parentis (meaning ‘in place of the parent’) where the accused person is charged with an offence mentioned in s. 58(2) against a child (a ‘child’ for the purposes of the Children Act 2004 is a person under the age of 18 (s. 65(9)). However, the reasonable punishment defence remains available for parents and adults acting in loco parentis charged with common assault under the Criminal Justice Act 1988, s. 39. Whether the actions of the defendant are ‘reasonable’ will be important; physical punishment where a child is hit (causing injury reddening to the skin) with an implement such as a cane may well be considered ‘unreasonable’. It is important to note that the law does not rule out physical chastisement by a parent etc. but that chastisement should only constitute ‘mild smacking’ rather than cause injuries subject to assault charges.

Question 14

The Children Act 2004, s. 58 states:

Answer 14

(1)
In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.
(2)
The offences referred to in subsection (1) are—
(a)
an offence under section 18 or 20 of the Offences Against the Person Act 1861 (wounding or causing grievous bodily harm);
(b)
an offence under s. 47 of that Act (assault occasioning actual bodily harm);
(c)
an offence under s. 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16).

Question 15

Common Assault/Battery—Criminal Justice Act 1988, s. 39

Answer 15

• Triable summarily
• Six months’ imprisonment

Question 16

Common Assault and Battery

Answer 16

The racially or religiously aggravated offence can be tried on indictment without having to be included alongside another indictable offence as is the case with common assaults generally (Criminal Justice Act 1988, s. 40).

CPS Charging Standards state that a charge under s. 39 of the Act is appropriate where no injury or injuries which are not serious occur. In R v Misalati [2017] EWCA Crim 2226, the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.

The injury sustained by the victim should always be considered first, and in most cases the degree of injury will determine the appropriate charge. The appropriate charge will usually be contrary to s. 39 where injuries amount to no more than the following:

• grazes;
• scratches;
• abrasions;
• minor bruising;
• swellings;
• reddening of the skin;
• superficial cuts.

Question 17

Racially or Religiously Aggravated—Crime and Disorder Act 1998, s. 29(1)©

Answer 17

• Triable either way
• Two years’ imprisonment and/or a fine on indictment
  Six months’ imprisonment and/or a fine summarily

Question 18

Assaults on Emergency Workers

Answer 18

The Assaults on Emergency Workers (Offences) Act 2018 states that a common assault or battery committed against an emergency worker acting in the exercise of functions as such a worker is punishable:

• on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both;
  on conviction on indictment, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.

Question 19

When Does it Apply?

Answer 19

The circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.

Question 20

Increased Sentence

Answer 20

Although the Act provides for an increase in sentence to 12 months for common assault/battery on an emergency worker, the reality is that this increased sentence is not at the disposal of the magistrates’ court. Section 154 of the Criminal Justice Act 2003 (increase in the maximum term that may be imposed on summary conviction of an offence triable either way) is not in force. Until that is the case, the reference to 12 months above is to be read as six months.

The fact that the victim of the offence is an emergency worker is an aggravating factor when considering other offences under the Offences Against the Person Act 1861. This is the case for a number of offences, such as s. 20 (malicious wounding/GBH), s. 18 (wounding/GBH with intent) and s. 47 (assault occasioning actual bodily harm) (s. 2(3)). Where this is the case, the court must treat the fact that the offence was committed on an emergency worker as an aggravating factor (that is to say, a factor that increases the seriousness of the offence) and must state in open court that the offence is so aggravated (s. 2(2)).

Question 21

‘Emergency Worker’

Answer 21

An ‘emergency worker’ means:

• a constable;
• a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
• a National Crime Agency officer;
• a prison officer;
• a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
• a prisoner custody officer, so far as relating to the exercise of escort functions;
• a custody officer, so far as relating to the exercise of escort functions;
• a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
• a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
• a person employed for the purposes of providing, or engaged to provide:
• NHS health services; or
• services in the support of the provision of NHS health services;
  and whose general activities in doing so involve face-to-face interaction with individuals receiving the service or with other members of the public.
  It is immaterial whether the employment or engagement is paid or unpaid (s. 3(2)).

Question 22

Custodial Institution

Answer 22

A ‘custodial institution’ includes a prison, a young offender institution, a secure training centre, secure college or remand centre. It also includes a removal centre, a short-term holding facility or pre-departure accommodation (as defined by s. 147 of the Immigration and Asylum Act 1999) (s. 3(3)).

Question 23

Custody Officer

Answer 23

This is not to be confused with the term ‘custody officer’ at a designated police station. A ‘custody officer’ means a person in respect of whom a certificate is for the time being in force certifying that he/she has been approved by the Secretary of State for the purpose of performing escort duties and/or custodial duties at secure training centres.

Question 24

Escort Functions

Answer 24

‘Escort functions’, in the case of a prisoner custody officer, means the functions specified in s. 80(1) of the Criminal Justice Act 1991. In the case of a custody officer, it means the functions specified in para. 1 of sch. 1 to the Criminal Justice and Public Order Act 1994.

Question 25

NHS Health Services

Answer 25

‘NHS health services’ means any kind of health services provided as part of the health service continued under s. 1(1) of the National Health Services Act 2006 and under s. 1(1) of the National Health Service (Wales) Act 2006.

Question 26

Assault Occasioning Actual Bodily Harm—Offences Against the Person Act 1861, s. 47

Answer 26

• Triable either way
• Five years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Offences Against the Person Act 1861, s. 47 states:

Whosoever shall be convicted . . . of any assault occasioning actual bodily harm shall be liable . . . to be kept in penal servitude . . 

Question 27

Assault Occasioning Actual Bodily Harm

Answer 27

The only difference between an assault committed under s. 39 of the Criminal Justice Act 1988 and an assault under s. 47 of the Offences Against the Person Act 1861 is the degree of harm suffered by the victim and the sentence available. The mens rea and actus reus of the offence under s. 39 of the Criminal Justice Act 1988 and the offence under s. 47 of the Offences Against the Person Act 1861 are exactly the same.

It must be shown that ‘actual bodily harm’ was a consequence, directly or indirectly, of the defendant’s actions.

So what is ‘actual bodily harm’? In DPP v Smith [1961] AC 290, it was noted that the expression needed ‘no explanation’ and, in R v Chan-Fook ([1994] 1 WLR 689), the court advised that the phrase consisted of ‘three words of the English language which require no elaboration and in the ordinary course should not receive any’. While the phrase ‘bodily harm’ has its ordinary meaning, it has been said to include any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling (R v Miller [1954] 2 QB 282).

CPS Charging Standards state that a charge under s. 47 would be appropriate where the injuries are serious. Whilst CPS charging standards may be considered persuasive and/or influential regarding the appropriate charge, the fact remains that they do not represent the law—consequently, it is useful to consider specific case law decisions where the courts stated that the injuries amounted to a s. 47 offence for more authoritative direction.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to a s. 47 offence. This may amount to shock (R v Miller) and mental ‘injury’ (R v Chan-Fook). Where psychiatric injury is relied upon as the basis for an allegation of assault occasioning actual bodily harm, and the matter is not admitted by the defence, then expert evidence must be called by the prosecution (Chan-Fook).

The Administrative Court has accepted that a momentary loss of consciousness caused by a kick but without any physical injury can be ‘actual harm’ because it involved an injurious impairment of the victim’s sensory abilities which did not fall within the ‘trifling’ category described in R v Miller (T v DPP [2003] EWHC 266 (Admin)).

It was held in DPP v Smith (Ross Michael) [2006] EWHC 94 (Admin) that the substantial cutting of a person’s hair against his/her will could amount to actual bodily harm even though no pain or other injury may be involved. In Smith, the defendant cut off his ex-partner’s ponytail, deliberately and without her permission. Even though medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, it falls within the meaning of ‘bodily’ in the phrase ‘actual bodily harm’ as it is concerned with the body of the individual victim. Therefore the same would be true of fingernails.

CPS Charging Standards state that ABH should generally be charged where injuries and overall circumstances indicate that the offence clearly merits more than six months’ imprisonment and where the prosecution intends to represent that the case is not suitable for summary trial. Examples may include cases where there is a need for a number of stitches (but not superficial application of steri-strips) or a hospital procedure under anaesthetic.

Question 28

Wounding or Inflicting Grievous Bodily Harm—Offences Against the Person Act 1861, s. 20

Answer 28

• Triable either way
• Five years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Offences Against the Person Act 1861, s. 20 states:

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor . .

Question 29

Maliciously

Answer 29

Although the word maliciously suggests some form of evil premeditation, ‘malice’ here amounts to subjective recklessness. It means that the defendant must realise that there is a risk of some harm being caused to the victim but took the risk anyway. The defendant does not need to foresee the degree of harm which is eventually caused, only that his/her behaviour may bring about some harm to the victim.

Question 30

Wound

Answer 30

Wounding requires the breaking of the continuity of the whole of the skin (dermis and epidermis) or the breaking of the inner skin within the cheek, lip or urethra. A cut which breaks all the layers of a person’s skin, whether caused externally (e.g. a knife wound) or internally (e.g. a punch causing a tooth to puncture the cheek), will amount to a wound. It does not include the rupturing of internal blood vessels (bruising).

The definition of wounding may encompass injuries that are relatively minor in nature, e.g. a small cut. CPS Charging Standards state that an assault contrary to s. 20 should be reserved for the type of wounds considered to be really serious (thus equating the offence with the infliction of grievous, or serious, bodily harm). For example, a cut on the back of a person’s hand requiring two stitches and not resulting in ‘really serious harm’ is likely to be considered as a s. 39 or perhaps a s. 47 assault. If the same injury were across the surface of the eye causing loss of sight in the eye and thereby resulting in ‘really serious harm’, a charge of s. 20 or s. 18 assault may be appropriate.

Question 31

Inflict

Answer 31

In R v Ireland [1998] AC 147, it was stated that no ‘assault’ is needed for this offence and that harm could be ‘inflicted’ indirectly (in this case, by menacing telephone calls inflicting psychiatric harm). Therefore there is now little, if any, difference between inflicting harm and ‘causing’ harm. It should be enough to show that the defendant’s behaviour brought about the resulting harm to the victim.

Question 32

Grievous Bodily Harm

Answer 32

CPS Charging Standards are, once again, helpful but it should be noted that there is no definitive list of the kind of injuries that may be considered to be ‘really serious’.

A case involving a visible disfigurement is R v Marsh [2011] EWCA Crim 3190, where the female offenders became involved in a fight with a 16-year-old girl. One held the girl’s arms behind her back while the second cut the girl’s face with a key, causing a 4 cm laceration which would leave a permanent scar; the offenders were convicted of a s. 20 offence.

In R v Birmingham [2002] EWCA Crim 2608, it was held that a large number of minor wounds were capable of amounting to grievous bodily harm on a charge of aggravated burglary.

Question 33

Sexually Transmitted Infections (STIs)

Answer 33

The courts have recognised that person-to-person transmission of a sexual infection that will have serious consequences for the infected person’s health can amount to grievous bodily harm under the Offences Against the Person Act 1861 (in R v Dica [2004] EWCA Crim 1103, there was an acceptance that the deliberate infection of another with the HIV virus could amount to grievous bodily harm). This issue was explored further in R v Konzani [2005] EWCA Crim 706. In that case, the defendant appealed against convictions for inflicting grievous bodily harm on three women contrary to s. 20. The defendant had unprotected consensual sexual intercourse with the women, but without having disclosed that he was HIV-positive. The women subsequently contracted the HIV virus. The Court of Appeal held that there was a critical distinction between taking a risk as to the various potentially adverse (and possibly problematic) consequences of unprotected consensual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. Before consent to the risk of contracting HIV could provide a defence, that consent had to be an informed consent in this latter sense (Dica). Therefore, simply having an honestly held belief that the other person was consenting would only help if that consent would itself have provided a defence to the passing of the infection.

The case of R v Golding [2014] EWCA Crim 889 raised the issue of whether genital herpes could be described as ‘really serious harm’ so as to come within s. 20 of the Act. The defendant did not disclose his diagnosis of genital herpes to the victim which he passed on to her. The court found that Golding understood both that he had the infection and how it is transmitted, and by not preventing transmission—or disclosing his condition thereby allowing the complainant to make an informed decision whether or not she wanted to risk acquiring herpes—he was guilty of reckless grievous bodily harm under s. 20 of the Act.

CPS Charging Standards state that ‘informed consent’ does not necessarily mean that the suspect must disclose his/her condition to the complainant. A complainant may be regarded as being informed for the purposes of giving consent where a third party informs the complainant of the suspect’s condition, and the complainant then engages in unprotected sexual activity with the suspect. Similarly, a complainant may be regarded as being informed if he/she becomes aware of certain circumstances that indicate that the suspect is suffering from a sexually transmitted infection, such as visiting the suspect while he/she is undergoing treatment for the infection in hospital, or the appearance of sores on the suspect’s genitalia.

Question 34

Wounding or Causing Grievous Bodily Harm with Intent—Offences Against the Person Act 1861, s. 18

Answer 34

• Triable on indictment only
• Life imprisonment

The Offences Against the Person Act 1861, s. 18 states:

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony . . .

Question 35

An offence under s. 18 may take one of four different forms, namely:

Answer 35

(a)
wounding with intent to do grievous bodily harm;
(b)
causing grievous bodily harm with intent to do so;
(c)
maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or
(d)
maliciously causing grievous bodily harm with intent to resist or prevent the lawful apprehension etc. of any person.

Question 36

Wounding or Causing Grievous Bodily Harm with Intent

Answer 36

Although there are similarities with the offence under s. 20 (see para. 2.7.14), you must show the appropriate intent (e.g. to do grievous bodily harm to anyone or to resist/prevent the lawful apprehension/detention of anyone).

Factors that may indicate such a specific intent include:

• a repeated or planned attack;
• deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack;
• making prior threats;
• using an offensive weapon against, or kicking a victim’s head.

In form (a) or (b), where the intent was to cause grievous bodily harm, the issue of ‘malice’ will not arise. However, where the intent was to resist or prevent the lawful arrest of someone (in form (c) or (d)), the element of maliciousness (subjective recklessness) as set out above (see para. 2.7.14) will need to be proved. In addition, where it is alleged that D acted with the intent to avoid or resist the lawful apprehension of any person, it may be his/her own arrest or that of another he/she resisted, but the lawfulness of that arrest or detention must in either event be proved by the prosecution. It does not follow that D must be proved to have known the arrest etc. was lawful, but in a case such as Kenlin v Gardiner [1967] 2 QB 510, where D mistook the arresting officers for kidnappers, mistaken self-defence may be raised by the defence.

The word ‘cause’, together with the expression ‘by any means whatsoever’, seems to give this offence a wider meaning than s. 20. However, the increasingly broad interpretation of the s. 20 offence means that there is little difference in the actus reus needed for either offence.

The intentional infliction of a sexually transmitted infection can amount to an offence under s. 18 of the Act. CPS guidance states that for such a prosecution to proceed, there must be scientific and/or medical and factual evidence which proves the contention that the defendant intentionally and actually transmitted the infection to the complainant. The consent of the complainant to sexual activity in the knowledge that the defendant is infectious does not amount to a defence in cases of intentional infection (R v Donovan [1934] 2 KB 498; Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715, CA).

In relation to injuries brought about by driving motor vehicles, the Court of Appeal has held that there is nothing wrong in principle in charging a driver with causing grievous bodily harm as well as dangerous driving in appropriate circumstances (R v Bain [2005] EWCA Crim 7). It follows that bringing about other forms of significant or lasting injury with a motor vehicle could be dealt with under the offences in this part of the chapter. However, in Bain it was held that where a driver was charged with both offences (causing grievous bodily harm and dangerous driving), a court could not impose consecutive terms of imprisonment for both offences arising out of the same incident. The specific offence of causing serious injury by dangerous driving (under s. 143 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) may be a far more appropriate charge when the offence has been brought about by driving a mechanically propelled vehicle.

The provisions of ss. 28 and 29 of the Crime and Disorder Act 1998 in relation to racially or religiously aggravated assaults do not apply to this offence. However, the courts must still take notice of any element of racial or religious aggravation when determining sentence (Criminal Justice Act 2003, s. 145—increase in sentences for racial or religious aggravation).

Question 37

Assault with Intent to Resist Arrest

Answer 37

Assault with Intent to Resist Arrest—Offences Against the Person Act 1861, s. 38

• Triable either way
• Two years’ imprisonment

The Offences Against the Person Act 1861, s. 38 states:

Whosoever … shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor …

Question 38

Keynote - Assault with Intent to Resist Arrest

Answer 38

It must be shown that the defendant intended to resist or prevent the lawful arrest or detention of a person (his/her own arrest/detention or that of another) and that the arrest was lawful (R v Self [1992] 1 WLR 657). Provided they were acting within their powers, this offence can apply to arrests made not only by police officers but also by any person who has a power of arrest, i.e. members of the public.

Once the lawfulness of the arrest is established, the state of mind necessary for the above offence is that required for a common assault coupled with an intention to resist/prevent that arrest/detention. It is irrelevant whether or not the person being arrested/detained had actually committed an offence. These principles were set out by the Court of Appeal in a case where the defendant mistakenly believed that the arresting officers had no lawful power to do so. The court held that such a mistaken belief does not provide a defendant with the defence of ‘mistake’. Similarly, a belief in one’s own innocence, however genuine or honestly held, cannot afford a defence to a charge under s. 38.

Question 39

Assault Police—Police Act 1996, s. 89

Answer 39

• Triable summarily
• Six months’ imprisonment and/or a fine

The Police Act 1996, s. 89 states:

(1)
	Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence . . .

Question 40

Assault Police

Answer 40

This offence requires that the officer was acting in the execution of his/her duty when assaulted. If this is not proved, then part of the actus reus will be missing. Even a minor, technical and inadvertent act of unlawfulness on the part of the officer will mean that he/she cannot have been acting in the lawful execution of his/her duty. While the precise limits of a constable’s duty remain undefined, it is clear that a police officer may be acting in the course of his/her duty even when doing more than the minimum the law requires (R v Waterfield [1964] 1 QB 164). It is also clear that any action amounting to assault, battery, unlawful arrest or trespass to property takes the officer outside the course of his/her duty (Davis v Lisle [1936] 2 KB 434).

A court may infer from all the circumstances that an officer was in fact acting in the execution of his/her duty (Plowden v DPP [1991] Crim LR 850).

Where the assault is made in reaction to some form of physical act by the officer, it must be shown that the officer’s act was not in itself unlawful.

Other than the powers of arrest and detention, police officers have no general power to take hold of people in order to question them or keep them at a particular place while background inquiries are made about them. Therefore, if an officer does hold someone by the arm for questioning without arrest, there may well be a ‘battery’ by that officer (Collins v Wilcock [1984] 1 WLR 1172). The courts have accepted, however, that there may be occasions where a police officer is justified in taking hold of a person to attract his/her attention or to calm him/her down (Mepstead v DPP [1996] COD 13).

Where a prisoner is arrested and brought before a custody officer, that officer is entitled to assume that the arrest has been lawful. Therefore, if the prisoner goes on to assault the custody officer, that assault will be an offence under s. 89(1) even if the original arrest turns out to have been unlawful (DPP v L [1999] Crim LR 752).

There is no need to show that the defendant knew, or suspected, that the person was in fact a police officer or that the police officer was acting in the lawful execution of his/her duty (Blackburn v Bowering [1994] 1 WLR 1324). However, if the defendant claims to have been acting in self-defence under the mistaken and honestly held belief that he/she was being attacked, there may not be sufficient mens rea for a charge of assault.

These offences are simply a form of common assault upon someone carrying out a lawful function.

Question 41

Obstruct Police—Police Act 1996, s. 89

Answer 41

• Triable summarily
• One months’ imprisonment and/or a fine

The Police Act 1996, s. 89 states:

(2)
	Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence . . .

Question 42

Obstruct Police

Answer 42

No offence under s. 89(2) can be committed unless the officer was acting in the lawful execution of his/her duty.

Resistance suggests some form of physical opposition; obstruction does not and may take many forms, e.g. warning other drivers of a speed check operation (R (DPP) v Glendinning (2005) EWHC 2333 (Admin)—note that the persons warned about the speed check must be actually committing or about to commit the speeding offence), deliberately providing misleading information (Ledger v DPP [1991] Crim LR 439), deliberately drinking alcohol before providing a breath specimen (Ingleton v Dibble [1972] 1 QB 480) or ‘tipping off’ people who were about to commit an offence (Green v Moore [1982] QB 1044). Obstruction has been interpreted as making it more difficult for a constable to carry out his/her duty (Hinchcliffe v Sheldon [1955] 1 WLR 1207). Refusing to answer an officer’s questions is not obstruction (Rice v Connolly [1966] 2 QB 414), neither is advising a person not to answer questions (Green v DPP (1991) 155 JP 816) unless perhaps the defendant was under some duty to provide information. Any obstruction must be wilful, that is the defendant must intend to do it. The obstruction will not be ‘wilful’ if the defendant was simply trying to help the police, even if that help turned out to be more of a hindrance (Willmot v Atack [1977] QB 498).

Obstruction can be caused by omission but only where the defendant was already under some duty towards the police or the officer. There is also a common law offence of refusing to go to the aid of a constable when asked to do so in order to prevent or diminish a breach of the peace (R v Waugh (1986) The Times, 1 October).

Question 43

Making a Threat to Kill—Offences Against the Person Act 1861, s. 16

Answer 43

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Offences Against the Person Act 1861, s. 16 (amended by the Criminal Law Act 1977, s. 65, sch. 12) states:
A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence . . .

Question 44

Making a Threat to Kill

Answer 44

The proviso that the threat must be made ‘without lawful excuse’ means that a person acting in self-defence or in the course of his/her duty in protecting life (e.g. an armed police officer) would not commit this offence (provided that his/her behaviour was ‘lawful’).

A threat can be communicated in any way. In R v Martin (1993) 14 Cr App R (S) 645, the offender sent two anonymous notes stained with blood to the victim and in R v Patel [2012] EWCA Crim 2172 the offender threatened his former partner that he would kill their young son and then sent a text message to her that he had done so.

You must show that the threat was made (or implied (R v Solanke [1970] 1 WLR 1)) with the intention that the person receiving it would fear that it would be carried out. It is the intention of the person who makes the threat which is important in this offence. It does not matter whether the person to whom the threat is made does fear that the threat will be carried out.

The threat may be to kill another person at some time in the future or it may be an immediate threat, but the threatened action must be directly linked with the defendant. Simply passing on a threat on behalf of a third person without the necessary intent would be insufficient for this offence.

A threat to a pregnant woman in respect of her unborn child is not sufficient if the threat is to kill it before its birth (the unborn child is not a ‘person’). But if it is a threat to kill the child after its birth, this would appear to be an offence within this section (R v Tait [1990] 1 QB 290).